A    D    D    R    E    S   S   E    S 

Presentation    of    Portrait    of    Chief   Justice 

Leonard  Henderson 

to  the 

Supreme  Court  of  North  Carolina 


Leonard  Henderson 


ADDRESS 


OF 


Judge  Robert  W.  Winston 

Presenting  the  Portrait  of  Chief  Justice  Henderson  to 
the  Supreme  Court  of  North  Carolina 


Address  of  Acceptance 


BY 


Chief  Justice  Walter  Clark 


Digitized  by  tine  Internet  Arciiive 
in  2011  witii  funding  from 
University  of  Nortii  Carolina  at  Chapel  Hill  j 


http://www.archive.org/details/leonardhenderson111wins 


Address  of  Judge  Robert  W.  Winston 


Mr.   Chief  Justice  and  Associate  Justices  oj  the  Supreme 
Court  OJ  North  Carolina: 

"  When  Cellini's  statue  of  Perseus  was  first  exhibited 
on  the  Piazza  at  Florence,  it  was  surrounded  for  days  by  an 
admiring  throng,  and  hundreds  of  tributary  sonnets  were 
placed  upon  its  pedestal."  We  are  assembled  today  in  this 
hall,  whose  walls  are  adorned  with  portraits  of  our  State's 
great  jurists,  and  in  the  presence  of  worthy  successors  to 
those  judges,  whose  "  dignity,  wisdom  and  ability  have 
made  North  Carolina's  proudest  possession  her  courts  of 
justice,"  to  hang  in  its  proper  place,  between  Taylor  and 
Ruffin,  a  portrait  of  Chief  Justice  Henderson.  In  the 
name  of.  the  living  kinsfolk  of  him,  of  whom  Judge  Pear- 
son, in  the  leading  case  of  State  v.  Deal,  64  N.  C,  273, 
declared,  "  His  powers  of  reflection  exceeded  that  of  any 
man  who  ever  had  a  seat  on  this  bench,  unless  Judge  Hay- 
wood be  considered  his  equal  in  this  respect,"  I  present 
to  you  this  portrait  of  Leonard  Henderson,  one  of  the  first 
Justices  of  this  Court  upon  its  organization  in  its  present 
form  in  1818,  and  Chief  Justice  of  this  Court  from  1829  to 
the  date  of  his  death  in  1833. 

The  Chief  Justice's  grandfather  was  Colonel  Samuel 
Henderson,  who  was  the  first  high  sheriff  of  Granville 
County.  The  Henderson  family  removed  from  Hanover 
County, Virginia,  to  Granville  County,  North  Carolina,about 
the  year  1740,  and  here  Colonel  and  aftewards  Judge  Rich- 
ard Henderson,  son  of  Samuel  Henderson,  married  Elizabeth 


Keeling,  from  which  marriage  sprang  the  jurist,  Leonard 
Henderson.  A  man's  education  begins,  they  say,  hun- 
dreds of  years  before  he  is  born,  and  hence  it  is  not  difficult 
to  trace  to  their  source  certain  characteristics  of  the  Chief 
Justice — his  originality,  his  independence,  his  rugged  per- 
sonality. How  could  he  have  been  otherwise?  Samuel 
Henderson,  the  grandfather,  strong  and  rugged,  had  exe- 
cuted his  writs,  subpoenas,  and  other  processes,  a-foot 
through  the  forest  primeval,  traversing  a  territory  from 
Virginia  on  the  North  to  Johnston  on  the  South,  and  from 
the  mountains  on  the  west  to  Northampton  on  the  east. 
"  The  father,  Richard  Henderson,  holding  the  minor  office 
of  constable,  and  fired  by  a  noble  ambition,  determined  to 
enter  the  profession  of  the  law."  He  accordingly  read  such 
books  as  were  to  be  had,  and  after  a  short  time  presented 
himself  for  examination  to  the  Chief  Justice  of  the  Gen- 
eral Court,  upon  whose  certificate  of  proficiency  the  Gov- 
ernor would  issue  a  license  to  practice  law.  When  this 
stripling  of  the  law  made  known  to  the  examiuer  that  he 
had  scarce  been  sorrowing  at  the  feet  of  Coke  and  Littleton 
twenty  months,  not  to  mention  twenty  years,  he  was  rudely 
advised  to  go  home  and  not  undertake  to  stand  for  his 
license,  to  which  our  undaunted  young  disciple  of  Themis 
stated  with  promptness  and  spirit,  that  he  had  come  not 
to  ask  advice  or  seek  a  favor,  but  to  demand  a  right.  It  is 
needless  to  add  that  the  license  was  worthily  won,  in  the 
teeth  of  the  most  rigid  examination.  Subsequently,  Col- 
onel Richard  Henderson  attained  the  highest  honor  of  the 
profession  under  the  Royal  Government,  and  after  the 
War  of  the  Revolution  and  the  adoption  of  the  Constitu- 
tion of  the  United  States,  he  was  elected  one  of  the  first 
three  Justices  of  the  Supreme  Court  of  North  Carolina. 
This  office  he  shortly  resigned,  or  refused  to  accept,  the 
reason  being  that  he  had  more  ambitious  schemes  afoot. 
He  had  undertaken  to  establish  a  new  colony  in  the  west. 


and  to  this  end  had  organized  the  Transylvania  Land  Com- 
pany, which  purchased  of  the  Cherokee  Indians  vast  tracts 
of  land  in  Kentucky  and  Tennessee.  The  position  of 
Governor  or  President  of  this  colony  called  him  from  his 
new  honors  in  North  Carolina.  This  colony  progressed 
so  far  that  it  sent  delegates  to  the  Continental  Congress 
at  Philadelphia,  asking  to  be  admitted  as  the  fourteenth 
State  of  the  Union.  Of  Colonel  Henderson  it  is  said  that 
he  was  the  only  private  American  citizen  who  had  a  chap- 
lain of  his  own.  When  he  went  into  Kentucky  with  his 
expedition  he  was  accompanied  by  a  clergyman  of  the 
Church  of  England,  who  acted  as  chaplain  of  his  forces, 
and  opened  with  prayer  Henderson's  first  Legislature. 
This  good  man  was  shortly  afterwards  scalped  by  the  In- 
dians, who  no  doubt  found  him  an  easier  prey  than  the 
heroic  president  of  the  company. 

Wheeler,  in  his  Reminiscences,  gives  some  interesting 
facts  connected  with  the  life  of  Colonel  Richard  Henderson. 
"  On  I  March,  1769,"  quoting  from  the  record,  "  at  a  meet- 
ing of  the  counsel,  there  being  present  Governor  Tryon, 
John  Rutherford,  Benjamin  Herron,  Lewis  DeRossett,  and 
Samuel '  Strudwick,  Richard  Henderson  was  appointed 
assistant  Judge,  as  also  Maurice  Moore,  Esq.  Governor 
Tryon  reports  that  '  Richard  Henderson,  Esq.,  is  a  man  of 
ability,  born  in  Virginia  and  living  in  Hillsboro,  where  he 
is  highly  esteemed.'  "  Colonel  Henderson  must  have  led 
a  life  of  much  daring  and  some  adventure.  For  example, 
on  24  September,  1770,  he  wrote  Governor  Tryon  that  on 
that  day  Herman  Husbands,  James  Hunter,  William  But- 
ler, Ninnian  Bell  Hamilton,  Jeremiah  Fields,  Matthew 
Hamilton,  Eli  Branson,  Peter  Craven,  John  Truitt,  Abra- 
ham Teed  and  Samuel  Parks,  armed  with  cudgels  and  cow- 
hide whips,  broke  up  the  court  and  attempted  to  strike  the 
Judge  and  made  him  leave  the  bench.  They  assaulted  and 
beat  John  Williams  severely,  and  also  Edward  Fanning, 


until  he  retreated  into  the  store  of  Messrs.  Johnston  and 
Thackston,  and  demolished  Fanning's  house.  Not  only  were 
these  beaten,  but  Thomas  Hart  and  John  Ludlow,  Clerk  of 
the  Crown,  and  many  others  were  severely  whipped.  An- 
other entry  of  date  25  January,  1771,  is  an  order  entered 
by  the  Regulators  that  Richard  Henderson,  who  appeared 
as  prosecutor  of  several  charges  against  Thomas  Pearson, 
should  pay  all  costs. 

Judge  Richard  Henderson's  family  consisted  of  four 
sons  and  two  daughters.  Of  these  William  Henderson  was 
a  gallant  soldier  of  the  Revolution,  Lieutenant-Colonel  of 
the  Third  South  Carolina  Regiment,  captured  at  Charles- 
ton, exchanged  to  First  South  Carolina  Regiment,  a  hero 
of  Eutaw  Springs,  where  he  was  severely  wounded  8  Sep- 
tember, 1 78 1.  Archibald  Henderson,  an  elder  brother  of 
the  Chief  Justice,  was  declared  by  Judge  Murphy  to  be  "  the 
most  perfect  model  of  a  lawyer  the  bar  has  ever  produced, 
and  he  contributed  more  to  give  dignity  to  the  profession 
than  any  lawyer  since  the  days  of  General  William  R. 
Davie  and  Alfred  Moore.  One  need  not  be  told  that  he  was 
the  grandfather  of  John  Steele  Henderson,  of  Salisbury. 
Archibald  Henderson  was  wont  to  say  that  he  had  known 
many  good  lawyers,  but  few  good  judges,  and  in  true  Bacon- 
ian fashion,  proceeded  to  grade  judicial  qualifications  in 
this  wise  :  First  of  all,  good  common  sense ;  next,  an  in- 
timate knowledge  of  men,  particularly  of  the  middle  or 
lower  classes — their  passions,  prejudices  and  modes  of 
thought ;  thirdly,  good  moral  character,  subdued  feelings 
without  prejudices  and  partiality  ;  then  independence  and 
energy  of  will ;  and,  last  of  all,  legal  learning.  Mr.  Hen- 
derson must  have  been  a  most  loyal  party  man  to  cast  his 
vote  as  a  member  of  Congress  for  Burr  instead  of  Thomas 
Jefferson  for  President  of  the  United  States.  Most  of  the 
Congressmen  from  our  State  voted  for  Mr.  Jefferson.  In- 
deed, so  strong  a   Federalist  as   Marshall  was  induced  by 


Hamilton  to  vote  for  the  Republican,  Jefferson,  rather  than 
for  Burr.  This  is  the  real  secret  of  the  Burr-Hamilton 
duel,  the  remark  made  by  Hamilton  concerning  Burr  at 
the  gubernatorial  caucus  in  Albany  being  but  the  pretext. 
Mr.  Henderson  was  buried  in  Salisbury,  and  a  monument 
was  erected  to  his  memory  by  the  bar  of  Western  North 
Carolina,  this  being  the  only  monument  ever  erected  in 
North  Carolina  to  a  member  of  our  bar  by  his  fellows.  He 
was  often  a  member  of  the  General  Assembly  and  a  repre- 
sentative of  his  district  in  Congress.  He  left  surviving  two 
children,  Archibald  Henderson,  and  a  daughter,  who  mar- 
ried Judge  Nathaniel  Boyden,  the  family  traits  being  admir- 
ably preserved  in  a  grandson,  Archibald  Henderson  Boyden, 
sometime  mayor  of  Salisbury.  Another  son  of  Richard  Hen- 
derson, and  a  3'ounger  brother  of  Chief  Justice  Henderson, 
was  John  Lawson  Henderson,  who  often  represented  the 
Burrough  of  Salisbury  in  the  General  Assembly,  was  Comp- 
troller of  the  State,  and  Clerk  of  the  Supreme  Court,  and 
died  in  Raleigh  in  1834.  Still  another  son  was  Pleasant 
Henderson,  who  removed  to  Cabarrus  County. 

A  bit  of  romance  attaches  to  the  maternal  line  of  the 
Chief  Justice.  His  mother  was  Elizabeth  Keeling,  and  she 
was  a  daughter  of  Lord  George  Keeling,  so  doughty  a 
defender  of  the  Protestant  faith  in  Ireland  that  he  was 
expelled  from  Parliament  and  fled  to  the  State  of  Virginia, 
where  after  getting  together  enough  money  by  fishing  with 
improvised  nets  in  the  Rappahannock  to  pay  the  expenses 
of  his  affianced,  Miss  Bullock,  of  crossing  over  from  Wales 
to  Virginia,  they  were  happily  married  and  became  the 
parents  of  Elizabeth,  aforesaid,  the  mother  of  Chief  Justice 
Henderson.  And  albeit  Elizabeth  in  time  became  the  first 
lady  of  the  land,  she  was  so  careful  and  thrifty  a  housewife 
that  she  taught  her  sons,  who  were  to  become  law-givers, 
statesmen  and  jurists,  the  gentle  art  of  carding  and  spinning. 

The  great  Chief  Justice  was  no  less  fortunate  in  his 


friends  and  neighbors  and  in  the  county  of  his  birth  than 
in  his  ancestry.  The  county  of  Granville,  bearing  the 
proud  name  of  John  Carteret,  Earl  of  Granville,  stretching 
from  the  everlasting  hills  on  the  border  well  into  the  cotton 
belt  in  the  east,  was  in  itself  a  vast  domain.  In  the  hill 
country,  on  Nut  Bush  Creek,  a  few  miles  from  the  waters 
of  the  fast  flowing  Roanoke,  was  born  6  October,  1772, 
Leonard  Henderson.  Hard  by  his  home  was  Williamsboro, 
named  for  Judge  John  Williams,  whose  sister  Leonard's 
paternal  grandfather  had  married.  And  at  Williamsboro  was 
Springer  College,  and  Saint  John's  Church,  and  the  home 
of  John  Stark  Ravenscroft,  first  Bishop  of  North  Carolina, 
and  of  John  Penn,  signer  of  the  Declaration  of  Independ- 
ence, of  Col.  Robert  Burton,  member  of  the  Continental 
Congress,  of  John  Lewis  Taylor  Sneed,  afterwards  Chancel- 
lor of  Tennessee,  of  Robert  Goodloe  Harper,  of  lordly 
Governor  Turner,  and  a  little  later  of  the  splendid  classical 
school  of  Reverend  Doctor  Alexander  Wilson  ;  of  William 
Robards,  Treasurer  of  North  Carolina  ;  of  William  Hill 
Jordan,  most  eloquent  of  divines  ;  cf  Patrick  Hamilton, 
grandfather  of  the  accomplished  general  counsel  of  the 
Coast  Line,  and  of  the  Hargroves,  Bullocks,  Carringtons, 
Roysters  and  Baskervilles,  gentle  folk  possessed  of  broad 
acres,  troops  of  slaves  and  dogs  of  all  degrees.  Near  the 
end  of  the  eighteenth  century,  William  Lee  Alexander 
invaded  this  charmed  circle  and  bore  away  Elizabeth,  sis- 
ter to  Leonard.  But  we  shall  forgive  him  for  the  gift  of  a 
grandson,  sturdy  scion  of  sturdy  stock,  who  now  sits  upon 
this  bench.  It  may  not  be  uninteresting  to  note  that  this 
section  was  a  close  second  to  Chapel  Hill  as  a  suitable  site 
for  the  location  of  our  University  ;  that  at  Williamsboro 
both  the  Judge  and  Solicitor  resided,  and  that  from  the 
Williams  family  of  Williamsboro,  descended  Gen.  R.  F. 
Hoke,  Chief  Justice  Pearson,  John  Sharp  Williams,  of  Mis- 
sissippi ;  Richmond  P.  Hobson,  of  Alabama  ;  Hoke  Smith, 

8 


of  Georgia ;  Calvin  Graves,  R.  B.  Glenn,  the  Settles  and 
Dockerys,  and  that  great  teacher  and  sweet  spirit,  Ralph 
H,  Graves.  Williamsboro  of  the  eighteenth  century  was 
not  without  its  attractions — a  well  ordered  race  course — 
the  best  in  the  State — and  a  generous  tavern,  for  such  the 
hotel  was  called,  modeled  after  an  English  coffee  house, 
and  presided  over  by  Col.  Samuel  Henderson.  Here  judges 
and  lawyers  and  travelers  of  all  kinds  were  hospitably  en- 
tertained. Here  George  Washington  paid  a  short  visit, 
and  from  here  went  forth  hunting  parties  into  Virginia 
and  up  and  down  the  fast  flowing  Roanoke.  Perhaps  the 
familiar  name,  "The  Lick,"  by  which  Williamsboro  was 
then  called,  had  reference  to  the  habits  of  the  deer  and 
to  the  spot  where  weary  travelers,  as  well  as  the  antlered 
monarchs  of  the  forest,  might  gather  for  refreshment. 
Often  making  one  of  these  parties  was  Pleasant  Henderson, 
a  brother  to  Leonard,  who  had  removed  to  Cabarrus  and 
married.  We  are  indebted  to  this  man,  for  from  him  was 
lineally  descended  one  who  but  lately  passed  from  earth, 
beloved  beyond  any  man  of  his  day,  bearing  the  grand  old 
name  of  gentleman — Hamilton  C.  Jones,  of  Charlotte. 

The  Henderson  home  was  called  "  Jonesboro,"  and  the 
plantation,  containing  some  six  hundred  acres  or  more, 
stretched  across  Little  Island  Creek,  another  tributary  of 
the  Roanoke.  Across  from  "Jonesboro"  was  "Montpelier," 
the  home  of  Judge  Williams,  and  in  the  distance  was  the 
hospitable  "  Burnside,"  where  the  Hamiltons  lived,  and 
nearer  to  the  village  stood  the  "  Sneed  Mansion  House," 
and  not  far  aw^ay  was  "  Belvidere,"  the  romantic  home  of 
Captain  Jack  Eaton,  and  "Nine  Oaks,"  where  resided 
Broomfield  Ridley,  who  married  into  the  Henderson  family 
and  moved  to  Tennessee,  becoming  the  ancestor  of  judges 
and  doctors  of  divinity,and  in  easy  reach  stood  "LaGrange," 
owned  by  John  Hare,  Esq.,  a  friend  of  the  Hendersons.  We 
may  pause  to  remark  that  it  was  in   this  vicinity  that  an 


incident  in  the  early  life  of  Edwin  G.  Reade,  then  a  penni- 
less youth,  turned  his  mind  to  the  law  and  gave  to  North 
Carolina  one  of  its  clearest-headed  jurists.  The  home  and 
its  environs  made  an  impression  upon  the  life  of  the  future 
Chief  Justice.  Even  in  ruins,  says  Dr.  Kingsbury,  Wil- 
liamsboro  is  the  most  antique  village  to  be  found.  It  lacks 
but  another  Goldsmith  to  become  another  Sweet  Auburn  of 
the  Plains.  There  is  a  ruggedness  in  the  foothills  of  our 
mountain  system,  a  serenity  in  the  solemn  forests  of  oak 
and  pine,  a  spirit  of  reflection  in  the  fast  flowing  streams 
hastening  to  swell  the  tide  of  the  Roanoke,  on  whose 
banks  the  red  man  had  but  lately  pitched  his  tents  and 
then  silently  folded  them  forever,  that  made  of  Leonard 
Henderson  a  man.  Here  grew  up  the  boy,  occasionally 
making  a  visit  to  his  relations  in  Salisbury,  frequently 
mingling  in  the  society  of  Hillsboro  and  Oxford,  but  always 
retaining  his  individuality.  His  education  was  confined  to 
the  instruction  of  a  local  teacher,  Rooker  by  name,  intro- 
duction to  the  Greek  and  Latin  classics  by  Rev.  ISIr.  Patillo, 
a  Presbyterian  clergyman,  the  course  of  learning  prescribed 
at  Springer  College,  and  one  or  two  sessions  at  Salisbury. 
This  preliminary  work  accomplished,  he  began  the  study 
of  law  in  real  earnest,  and  drank  deep  from  the  fountains, 
guided  in  his  task  by  Judge  John  Williams,  his  relative. 
In  1795  he  married  his  cousin,  Frances  Farrar,  a  niece  of 
Judge  Williams,  and  of  this  union  three  sons  and  two 
daughters  reached  maturity  and  married,  to-wit :  Archibald 
Erskine  Henderson,  Dr.  W.  F.  Henderson  and  John  L. 
Henderson,  Frances  who  married  Dr.  W.  V.  Taylor,  and 
Lucy  who  married  Richard  Sneed.  Shortly  thereafter  he 
was  appointed  Clerk  of  the  District  Court  of  Hillsboro, 
where  he  resided  for  several  years.  The  State  was  then 
divided  into  a  small  number  of  districts,  in  each  of  which 
a  court  of  supreme  jurisdiction  was  held  twice  a  year,  and 
as  each  district  comprised   several  counties,  the  clerkship 


10 


must  have  been  an  office  of  no  little  emolument  as  well  as 
dignity. 

"The  district  system  of  courts  was  abolished  in  1806, 
and  the  present  plan  by  which  a  Superior  Court  is  held  at 
least  twice  a  year  in  each  county,  took  its  place.  The  State 
was  divided  into  six  circuits,  and  a  judge  was  elected  for 
each  circuit.  The  judges  were  not  required  to  reside  in 
their  circuits,  and  they  might  ride  the  circuits  to  suit  them- 
selves, but  no  judge  might  ride  the  same  circuit  twice  in 
succession.  The  Supreme  Court  was  held  in  Raleigh,  by 
the  same  judges,  twice  a  year,  in  the  intervals  of  the  Su- 
perior Court  ridings.  Two  years  after  the  adoption  of  the 
Superior  Court  system,  Leonard  Henderson  was  chosen  by 
the  General  Assembly  to  fill  a  vacancy  caused  by  the  death 
of  his  relative,  Judge  McCoy,  and  removed  his  family  from 
Hillsboro  to  Williamsboro.  The  General  Assembly  at  that 
time  was  composed  of  members  of  the  Republican  party, 
while  Judge  Henderson  was  an  ardent  supporter  of  Hamil- 
.ton  and  Madison.  At  the  same  session  of  the  General 
Assembly,  David  Stone  was  chosen  Governor  of  North 
Carolina,  he  being  at  that  time  a  leader  of  the  Republican 
party.  The  election  of  Mr.  Henderson  in  these  circum- 
stances was  a  high  tribute  to  his  character  and  eminent 
qualifications." 

After  eight  years'  service  as  a  judge,  upon  the  meagre 
salary  of  $1,600.00  per  year,  he  resigned  his  office  and  re- 
sumed the  practice  of  his  profession  at  Williamsboro.  Judge 
W.  H.  Battle  assigns  as  a  reason  for  his  resignation,  that  a 
man  of  limited  means  with  an  increasing  family,  could  not 
well  afford  to  perform  the  arduous  duty  of  riding  two  cir- 
cuits, composed  of  ten  counties  each,  and  of  assisting  to 
hold  two  terms  of  the  Supreme  Court,  for  so  small  a  salary. 
Neither  official  dignity  and  repose,  nor  a  just  sense  of  pub- 
lic duty  could  prevent  such  a  man  from  returning  to-  a 
profession  whose  emoluments  might  supply  the  increasing 
wants  of  his  family. 

ii 


Soon  after  his  return  to  Williamsboro,  though  the  ex- 
act date  is  not  known,  Judge  Henderson  opened  the  first 
law  school  ever  established  in  the  State.  If  this  school 
had  its  beginning  prior  to  1810,  it  was  probably  the  first 
law  school  established  in  the  United  States.  Judge  Hen- 
derson is  therefore  justly  entitled  to  be  called  the  "  Father 
of  North  Carolina  Law  Schools."  Doubtless  it  was  while 
students  at  "Jonesboro"  that  Richmond  Pearson  and  W. 
H.  Battle  dreamed  of  the  day  when  they  too  would  establish 
schools  of  law,  modeled  after  that  of  Leonard  Henderson, 
and  become  the  idols  of  their  boys  and  wear  the  ermine, 
even  as  did  their  beloved  preceptor,  and  "  Jonesboro  "  be- 
came the  father  of  Richmond  Hill  and  of  the  University 
Law  School.  Attracted  by  the  fame  of  Judge  Henderson's 
law  school  and  by  the  culture  and  refinement  of  its  sur- 
roundings, generous  youth  from  far  and  near  gathered  to 
receive  instruction  in  the  law.  Among  others  were  Rich- 
mond Pearson,  William  Home  Battle,  Judge  Robert  Ballard 
Gilliam,  Judge  Burton  and  Governor  H.  G.  Burton. 

In  an  appreciative  and  faithful  sketch  of  Judge  Hender- 
son, by  Judge  Battle,  we  are  told  that  he  did  not  deliver 
regular  lectures,  nor  appoint  stated  hours  for  recitations, 
but  directed  the  studies  of  his  pupils,  urging  them  to  apply 
to  him  at  all  times  for  the  solution  of  their  difficulties,  and 
was  never  better  satisfied  with  them  than  when  by  their 
frequent  applications  to  him  for  assistance,  they  showed 
they  were  studying  with  diligence  and  attention.  As  an 
instructor  Judge  Henderson  was  thorough  and  accurate. 
While  he  did  not  formulate  the  case-system  of  instruction, 
the  credit  of  this  great  discovery  belonging  to  Prof.  Lang- 
dell,  of  Harvard,  still,  if  tradition  count  for  aught,  his 
young  students  were  not  ignorant  of  concrete  cases,  selected 
by  their  teacher  from  the  vast  volume  of  business  dispatched 
by  him  as  a  judge.  Indeed,  Richard  Bullock,  Esq.,  the 
wealthiest  man   in  the   community,  and  a  justice  of  the 


12 


peace,  often  had  his  patience  taxed  to  the  limit  by  the 
enthusiasm  of  these  twigs  of  the  law,  as  they  valiantly 
flashed  their  maiden  sword  in  defence  of  hapless  offenders 
in  his  court.  Is  it  not,  after  all,  the  office  of  a  law  school 
to  train  men  to  think,  to  be  firm,  to  be  obedient  to  consti- 
tuted authority,  to  frown  down  upon  lawlessness,  to  create 
a  healthy,  clean  public  sentiment — rather  than  to  give 
them  something  practical  ?  In  a  word,  to  teach  law  in  the 
grand  manner,  and  to  make  great  lawyers.  Was  Judge 
Holmes  correct  in  saying,  "It  is  from  within  the  bar 
and  not  from  outside  that  I  heard  the  new  gospel  that 
learning  is  out  of  date,  and  that  the  man  for  the  time  is  no 
longer  the  thinker  and  the  scholar,  but  the  smart  man,  un- 
encumbered with  other  artillery  than  the  latest  edition  of 
the  Digest  and  the  latest  revision  of  the  statutes  "  ?  If  he 
was,  were  it  not  well  to  abolish  the  quizzing  process  ? 
Henderson  and  Pearson — Gamaliel  and  Saul — these  men 
would  rather  their  students  reasoned  correctly,  though  they 
gave  a  wrong  answer,  than  that  they  reasoned  wrong  and 
stumbled  upon  the  right  answer. 

Judge  Henderson  was  a  thorough-going  Federalist.  He 
belonged  to  that  class  mentioned  by  Justice  Conner  in  his 
sketch  of  Gaston  who  were  apprehensive  of  the  political 
future  of  our  country  under  the  guidance  of  Jefferson. 
He  could  but  anticipate  the  day  "  when  in  the  State  of 
New  York,  a  multitude  of  people,  none  of  whom  have  had 
more  than  half  a  breakfast,  or  expects  to  have  more  than 
half  a  dinner,  will  choose  a  legislature,  and  when  on  one 
side  a  statesman  will  be  preaching  patience,  respect  for 
vested  right,  strict  observance  of  public  faith — on  the  other 
will  be  a  demagogue,  vaunting  about  the  tyranny  of  capi- 
talists and  money  lenders,  and  asking  why  anybody  should 
be  permitted  to  drink  champagne  and  ride  in  a  carriage, 
while  thousands  of  honest  folk  are  in  want  of  necessaries, 
and  he  could  but  ask  himself  which  of  these  two  was  likely 

13 


to  be  preferred  by  a  working  man  who  hears  his  child  cry 
for  more  bread.  And  he  saw  danger  and  danger  only  in 
the  teachings  of  Jefferson,  the  Idealist,  if  not  the  dema- 
gogue (!),  of  Jefferson  who  was  then  teaching  that  "con- 
stitutions should  not  be  looked  upon  with  sanctimonious 
reverence,  nor  deemed  like  the  ark  of  the  covenant,  too 
sacred  to  be  touched,  that  laws  and  institutions  should  go 
hand  in  hand  with  the  advance  of  the  human  mind,  that  the 
ofhce  of  judge  should  be  for  four  or  five  years,  which  would 
bring  their  conduct  at  regular  periods  under  revision  and 
probation." 

These  things  were  most  shocking  to  the  Federalists  of 
that  day,  and  yet  it  is  but  a  truism  that  no  constitution 
has  ever  been  written  which  did  not  bear  the  impress  of 
Jefferson's  mind,  and  we  of  the  twentieth  century  can  thank 
the  God  of  nations  equally  for  Hamilton  and  Marshall  and 
for  Jefferson  and  Jackson,  for  Henderson  as  well  as  for 
Macon.  The  resultant  of  these  contending  forces  is  "The 
States,"  time's  noblest  offspring.  We  have  no  fear  for 
our  country,  nor  will  capital  and  labor  clash  so  long  as  leg- 
islative bodies  shall  continue  to  enact  laws  protecting 
childhood,  shortening  hours  of  labor,  creating  old  age 
pensions,  regulating  public  service  corporations,  taxing  in- 
comes, and  so  long  as  the  courts  of  last  resort  see  to  it  that 
coaches  and  six  are  not  easily  driven  through  these  benef- 
icent statutes.  One  who  seeks  the  formative  period  of 
political  opinion  in  America,  must  look  to  the  State  Con- 
ventions held  at  the  end  of  the  eighteenth  century.  The 
Convention  for  North  Carolina  convened  in  Saint  Matthew's 
Parish  Church,  Hillsboro,  in  1788.  There  the  parties  lined 
up  for  battle,  and  on  one  side  or  the  other  from  that  day  until 
the  war  drum  sounded  in  1861,  the  people  of  North  Caro- 
lina, differing  from  each  other  upon  the  fundamental 
principles  of  government,  contended  as  two  strong  men 
standing  face  to  face.     Samuel  Johnson,  President  of  the 

14 


Convention,  and  Davie  and  Iredell,  founders  of  the  Feder- 
alist party,  afterwards  becoming  the  Whig  party,  opposing, 
and  by  a  vote  of  184  to  84,  vanquishing  Wiley  Jones,  Tim- 
othy Bloodworth  and  other  tribunes  of  the  people,  leaders 
of  the  Republican  party,  subsequently  becoming  the 
Democratic  party.  These  leaders  found  valiant  allies 
in  Nathaniel  Macon  and  the  Henderson  brothers,  respec- 
tively. While  the  victory  perched  first  on  one  banner  and 
then  on  another,  the  Republican-Democratic  party  ever 
keeping  close  to  Jefferson,  came  into  the  ascendant,  and  in 
1789  at  Fayetteville  reversed  the  action  of  the  Hillsboro 
Convention.  In  a  few  short  years.  Gen.  W.  R.  Davie,  the 
aristocratic  leader,  went  down  in  defeat  before  Willis 
Alston  in  a  heated  contest  for  Congress.  Whereupon  Gen- 
eral Davie,  our  erstwhile  representative  at  the  Court  of 
Napoleon,  became  so  much  disgusted,  not  only  on  account 
of  the  turn  of  affairs  and  of  his  own  defeat,  but  particularly 
on  account  of  the  manner  in  which  it  was  brought  about, 
his  rough  and  ready  antagonist,  Willis  Alston,  having  orig- 
inated and  circulated  a  most  laughable  joke  which  did 
much. to  create  a  sentiment  hostile  to  the  General,  that  he 
removed  to  more  congenial   regions  in  South  Carolina. 

The  fame  of  Leonard  Henderson  rests  not  mainly  upon 
his  capacity  as  a  teacher,  but  upon  his  eminent  qualifica- 
tions as  a  judge  of  this  Court.  His  pupil.  Judge  Battle, 
states  that  he  was  unquestionably  a  man  of  genius  and  in 
early  life  had  studied  wnth  assiduity  and  success  the  prin- 
ciples of  the  common  law  and  had  made  himself  familiar 
with  its  grounds  and  reasons.  He  was  never  content  until 
he  had  thoroughly  comprehended  whatever  he  met  in  the 
course  of  his  reading.  "  On  one  occasion  while  he  w^as  a 
student,  he  came  upon  a  passage  in  Bacon's  Abridgement, 
which  he  could  not  understand,  and  his  teacher  being  from 
home  so  that  he  could  not  get  it  explained,  he  came  very 
near  throwing  aside  his  books  in  despair  and  abandoning 

15 


the  profession  forever.  He  had  an  honest  as  well  as  strong 
mind,  and  in  all  his  arguments  we  find  predominant  an 
anxious  search  after  truth.  For  this  reason  he  was  restive 
when  he  found  himself  opposed  by  precedents  which  he 
thought  were  unsupported  by  principle.  Whatever  fault 
he  had  as  a  judge  was  owing  to  this  disposition,  but  not- 
withstanding that,  he  must  always  be  regarded  as  standing 
higli  among  those  who  before  and  after  him  have  adorned 
the  Supreme  Court  bench  of  North  Carolina."  His  ser- 
vices as  a  Supreme  Court  Judge  embraced  a  period  of  fifteen 
years  and  his  opinions  may  be  found  reported  in  the  4  to 
the  17  N.  C,  inclusive. 

In  1825  ^^  interesting  question  arising  out  of  the  doc- 
trine of  warranty,  was  presented  to  this  Court  in  tlie  case 
of  Taylor  V.  Shuford,  II  N.  C,  129.  Mr.  Badger,  with  his 
usual  force  and  clearness  had  contended  that  a  deed  without 
covenants  of  warranty  would  not  pass  an  after  acquired 
estate  to  the  original  grantee,  his  argument  being  that  con- 
veyances which  operate  without  transmutation  of  possession 
as  releases,  grants  of  incorporeal  hereditaments  and  deeds 
which  owe  their  operation  to  the  statute  of  uses,  have  no  such 
effect  of  themselves  and  that  they  pass  only  what  the  grantor 
hath  and  if  he  hath  nothing  they  pass  nothing.  ]\Ir.  Badger 
further  contended  that  if  the  grantor  afterwards  acquires 
title,  it  inures  to  himself  and  not  to  the  grantee.  But,  if 
warranty  be  added  to  such  conveyance,  then  by  force  of  the 
warranty  and  not  of  the  conveyance,  the  grantor  is  estopped 
and  title  subsequently  acquired  shall  inure  to  the  benefit  of 
the  grantee.  The  inference  is  conclusive  from  those  cases 
that  no  grant,  release  or  deed  operating  under  the  statute 
of  uses  creates  any  bar  except  by  force  of  an  express  war- 
ranty annexed  to  it.  With  this  technical,  though  cogent 
reasoning  of  Mr.  Badger,  Chief  Justice  Henderson  took  issue 
with  some  tartness,  as  the  opinion  will  show,  and  in  his 
usual  direct  fashion,  thus  :     "  If  A  sells  to  B  by  indenture, 

16 


he  thereby  affirms  that  he  has  title  when  he  makes  his  deed, 
and  if  he  had  not  and  afterwards  acquired  one,  in  an  action 
by  him  against  B,  the  title  of  the  latter  prevails,  not  be- 
cause A  passed  to  him  any  title  by  his  deed,  for  he  had 
none  then  to  pass,  but  because  A  is  precluded  from  showing 
the  fact."  A  vast  amount  of  learning  has  been  exhausted 
upon  this  abstruse  question,  as  may  be  seen  by  reference  to 
Prof.  Mordecai's  instructive  and  suggestive  Law  Lectures, 
title,  "  Estoppel  by  Warranty."  It  must  be  highly  gratify- 
ing to  the  descendants  of  Chief  Justice  Henderson  that  his 
decision  in  Taylor  v.  Shuford  was  finally  adopted  by  the 
Supreme  Court  of  the  United  States  in  Van  Ranselar  v. 
Kearney,  ii  Howard,  U.  S.,  298. 

Judge  Henderson's  style,  as  shown  in  his  reported  opin- 
ions, was  clear,  crisp  and  aphoristic.  Thus  after  deciding 
that  the  right  of  trial  by  jury  must  be  sacredly  preserved 
and  that  an  act  of  the  Legislature  which  simply  permits  an 
appeal  is  not  a  compliance  with  the  constitutional  guaran- 
tee of  trial  by  jury,  and  after  construing  the  word  "ought  " 
to  mean  "  must  "  and  to  be  imperative,  he  concludes  :  "It 
is  sufficient  for  the  creature  to  know  the  will  of  the  creator. 
Obedience  is  then  a  duty  without  an  express  command." 
In  arguing  this  appeal.  Potter,  on  behalf  of  the  appellant, 
declares  that  "it  was  enough  for  his  purpose  to  say  that  if 
he  had  shown  that  the  acts  giving  jurisdiction  are  uncon- 
stitutional, any  proviso  saving  the  right  of  appeal,  cannot 
make  them  constitutional."  All  of  which  is  respectfully 
submitted  for  the  consideration  of  the  newly  discovered 
Recorder's  Courts.  So  again  in  Britton  v.  Israel,  10  N.  C, 
225,  Judge  Henderson  boldly  declares  that  even  where 
there  is  an  express  warranty  of  soundness,  if  the  unsound- 
ness be  apparant,  and,  therefore,  must  have  been  known 
to  the  purchaser,  no  action  shall  lie. 

As  was  said  by  Judge  Battle  in  his  Memoir  of  Chief 
Justice  Henderson  in  the  University  Magazine  for  Novem- 

17 


ber,  1859,  the  first  three  judges  of  our  Supreme  Court, 
Hall,  Henderson  and  Taylor,  were  especially  desirous  to 
settle  for  North  Carolina  a  system  of  law  founded  upon  the 
common  law  of  England,  modified,  indeed,  to  some  extent, 
to  suit  the  peculiar  nature  of  our  institutions  and  altered 
in  many  respects  by  legislative  enactment.  In  this  attempt 
they  were  greatly  aided  by  the  argument  of  a  bar  which 
had  no  superior,  and  hardly  an  equal,  in  any  State  of  the 
Union.  The  truth  of  this  will  readily  be  acknowledged  by 
those  who  read  the  names  of  Archibald  Henderson,  Wil- 
liam Gaston,  Thomas  Rufllin,  Moses  Mordecai,  Gavin  Hogg, 
Peter  Brown,  Joseph  Wilson  and  Henry  Seawell.  Some 
of  these  were  succeeded  a  few  years  later  by  Duncan  Cam- 
eron, Francis  L.  Hawks,  George  E.  Badger,  Thomas  P. 
Devereux,  Frederic  Nash,  Samuel  Hillman,  William  H. 
Haywood,  Patrick  Henry  Winston,  of  Anson,  and  James 
Iredell.  To  be  Chief  Justice  of  this  Court  and  to  be  worthy 
of  the  position — what,  honor  in  the  gift  of  the  people  ap- 
proaches it — what  opportunity  for  good  equals  it  ?  Taylor, 
Henderson,  Ruffin,  Nash,  Pearson,  Smith,  Merrimon,  Shep- 
herd, Faircloth,  Furches,  Clark,  nomina  venerabiles  et 
clarissima. 

It  is  said  that  on  one  occasion  Bishop  Ravenscroft  at- 
tempted to  reprove  the  Judge  because  of  his  religious  or 
want  of  religious  views,  whereupon  the  Judge  retorted, 
"  It  were  well  for  you  to  have  your  horse  hitched  before 
you  crack  your  whip."  Unfortunate  for  the  religion  of  a 
hundred  years  ago,  its  doctrine  was  proven  orthodox  by 
apostolic  blows  and  knocks,  and  the  ecclesiastics  persisted 
in  churching  such  men  as  Thomas  Jefferson,  who  were 
by  no  means  scoffers  or  unbelievers,  but  earnest  seekers 
after  truth,  and  who  today  would  be  worshipping  at  the 
same  altar  with  Chas.  W.  Elliot,  Edward  Everett  Hale  and 
William  H.  Taft.  Religious  tolerance  did  not  character- 
ize an  age  taught  by  blind  mouths  whose  lean  and  flashy 

18 


songs  grate  upon  their  scrannel  pipes  of  wretched  straw,  an 
aofe  which  disfranchised  Catholics  and  forbade  Hebrews 
owning  real  estate — and  yet  it  was  such  an  age  that  pro- 
nounced the  boldness  of  the  Chief  Justice  to  be  skepticism. 
A  Christian  poet  had  not  then  sung — 

' '  There  lives  more  faith  in  honest  doubt, 
Believe  me,  than  in  half  the  creeds  " — 

Nor  had  we  learned  that  if  the  normal  man  is  let  alone,  to 
him  the  Heavens  will  declare  the  glory  of  God  and  the 
firmament  show  His  handiwork.  Such  a  man  will  finally 
come,  like  Napoleon,  to  declare,  "  I  know  men,  and  Jesus 
Christ  was  no  mere  man,"  or  like  Webster  to  exclaim,  "No 
man  can  read  the  sermon  on  the  Mount  and  be  an  infidel." 
Whatever  in  youth  Henderson  believed  or  disbelieved,  he 
finally  became  a  constant  worshipper  at  and  communicant 
of  old  Saint  John's  Church,  and  his  pew  may  now  be  seen 
by  the  curious  pilgrim  to  this  ancient  shrine. 

Judge  Henderson  was  a  large  man  physically.  He 
weighed  212  pounds  and  was  more  than  six  feet  in  height. 
His  hair  was  dark  and  profuse  and  well  roached  back 
from  his  forehead.  His  eyes  were  large  and  grey  and  in 
repose  appeared  rather  heavy,  says  Dr.  Kingsbury,  seeming 
to  be  "  in-taking  rather  than  giving  out."  His  head  was 
large,  strikingly  symmetrical,  with  forehead  high,  broad 
and  exquisitely  chiseled.  Like  all  the  Hendersons  of  his 
day,  he  had  a  remarkable  length  of  chin,  and  his  mouth 
was  fixed  well  back  in  his  head.  This  gave  occasion  to  a 
witty  Rowan  farmer  to  remark  when  the  Judge  presided 
the  first  time  in  Salisbury,  that  he  thought  Baldy  Hender- 
son's mouth  was  far  enough  back  in  his  head,  but  the  Judge 
had  swallowed  his.  When  the  fiery  Bishop  Ravenscroft 
removed  to  Williamsboro,  Judge  Henderson  did  not  call  as 
soon  as  he  might  and  the  stern  Bishop,  who  was  preparing 
his  hebdomadal  homily,  made  no  further  recognition  of  the 
belated  visit  than  a  turn  of  the  head,  at  once  resuming  his 

19 


task.  The  Judge  withdrew  and  told  his  boys  at  the  law 
school  that  he  had  been  treated  right  for  his  discourtesy. 

Judge  Battle  represents  Judge  Henderson  as  kind,  affa- 
ble and  courteous,  in  domestic  and  social  life.  He  posses- 
sed in  no  ordinary  degree  the  love  of  his  wife  and  children, 
and  there  was  no  man  whose  intercourse  with  his  family  was 
better  calculated  to  win  their  confidence  and  affection.  To 
this  day  his  memory  is  held  in  tender  affection  by  his  de- 
cendants,  one  of  whom,  now  serving  his  State  in  the  legis- 
lative halls,  and  but  yesterday  in  the  roar  of  battle  bury- 
ing a  leg  upon  the  red  hills  of  Virginia,  will,  like  Gunga 
Din,  "  dot  and  carry  one  till  the  longest  day  is  done,"  and 
another,  mingling  the  blood  of  Henderson  and  Scales, 
respected  by  the  whole  State,  has  but  entered  upon  his 
career.  Judge  Henderson  was  a  delight  to  his  friends,  and 
his  fine  conversational  powers,  aided  by  a  strong  and  ener- 
getic expression,  always  drew  around  him  a  circle  of  ad- 
miring listeners.  With  the  people  of  the  State  he  was 
always  a  favorite. -  No  better  illustration  of  this  could  be 
furnished  than  his  election  on  the  first  ballot  by  the  Legisla- 
ture, together  with  a  personal  friend  but  political  opponent, 
over  four  other  gentlemen  of  great  name  and  extensive 
influence  in  the  State,  Taylor,  Seawell,  IMurphy  and  Yan- 
cey. He  filled  no  other  offices  than  that  of  the  Clerk  of  the 
District  Court  at  Hillsboro,  Trustee  of  the  University  of 
North  Carolina,  and  Judge  of  the  Superior  and  Supreme 
Courts.  One  county  and  three  cities  in  this  and  other 
States  bear  the  name  of  Henderson,  such  an  impression  did 
this  virile  family  make  upon  mankind. 

On  13  August,  1833,  the  spirit  of  the  Chief  Justice  pass- 
ed to  its  reward.  For  him  his  contemporaries  manifested 
both  veneration  and  affection.  A  meeting  of  the  Bar,  at 
which  Adolphus  Erwin  presided  and  Burgess  S.  Gaither 
was  secretary,  was  held  in  August,  1833,  at  Asheville,  and 
after  adopting  the  usual  preamble,  the  resolutions  draugh- 

20 


ted  by  Samuel  Hillman,  Esq.,  declared  of  the  late  Chief 
Justice  that  his  life  and  character  had  been  identified  with 
the  legal  history  of  North  Carolina,  his  urbanity  of  man- 
ners, dignity  of  deportment,  unspeakable  honesty,  unshaken 
independence  and  vigilant  regard  for  every  class  of  suitors, 
have  maintained  the  universal  respect  and  esteem  of  the 
profession,  and  his  genius  and  talents  have  contributed 
much  to  erect  a  regular  system  of  law  and  equity,  adapted 
to  our  peculiar  conditions,  interests  and  institutions.  A 
meeting  of  the  Granville  Bar  was  presided  over  by  Judge 
J .  R.  Donnell  and  Hugh  Waddell  acted  as  secretary.  The 
resolutions  declared  that  "  the  judicial  office  in  the  govern- 
ment of  laws  is  that  in  which  the  community  have  the 
profoundest  interest,  for  in  addition  to  the  moral  and  intel- 
lectual elevation  of  him  who  fills  it,  is  the  respect  felt  for 
the  laws  themselves,  and  all  good  men  deplore  as  a  public 
calamity  that  such  an  office  should  ever  be  feebly  filled,  as 
to  the  mass  of  mankind  the  step  is  easy  from  a  contempt 
for  the  organ  to  a  contempt  for  the  law  itself.  As  a  Judge 
the  deceased  was  of  inestimable  value  to  North  Carolina. 
The  genius,  the  learning,  the  firmness  which  characterized 
him,  insured  the  faithful  execution  of  the  laws  and  com- 
manded the  universal  confidence  of  the  public."  Judge 
Ruffin  was  making  preparation  to  visit  Chief  Justice  Hen- 
derson at  Williamsboro  when  news  of  the  latter's  death 
was  announced.  At  once  he  hastened  to  Raleio-h,  and  from 
the  capital  on  the  21  August,  1833,  wrote  to  John  L.  Hen- 
derson, a  son  of  the  Chief  Justice  : 

"There  is  a  vacuum  here  which  none  can  fill.  Time 
(what  cannot  time  do  of  good  as  well  as  of  evil)  will,  I  trust 
alleviate  the  pangs  of  sorrow  I  now  experience,  and  sweeten 
the  chalice  he  has  so  lately  embittered  to  you.  Your  father 
is  gone  now,  but  let  his  works  live  after  him.  Forget  not 
his  virtues,  his  purity  of  heart,  his  benevolence,  his  power- 
ful and  profound  intellect,  but  while  they  are  yet  fresh  in 

21 


your  mind,  let  all  that  he  said  or  did  be  carefully  and  fre- 
quently thought  of  so  that  the  impression  on  your  own 
mind  may  be  permanent,  and  you  thereby  keep  him  con- 
stantly by  you  as  a  counsellor  and  guide." 

The  entire  letter  should  be  published  as  a  model  not  only 
of  elegance  of  diction,  but  of  the  love  which  bound  together 
the  two  great  Chief  Justices,  Ruffin  and  Henderson. 

When  the  spirit  of  Daniel  Webster  was  passing  from 
earth,  he  signified  his  wish  to  be  rolled  upon  his  couch  to 
the  window  that  he  might  look  for  the  last  time  upon  the 
beautiful  scenes  surrounding  "  Marshfield,"  his  country 
home,  and  that  he  might  gaze  once  again  into  the  honest 
eyes  of  his  oxen  which  were  driven  near  the  bedside. 
When  the  spirit  of  the  Chief  Justice  was  passing  from  earth, 
13  August,  1833,  he  requested  his  friends  to  permit  him 
to  gaze  for  the  last  time  upon  the  scenes  of  his  childhood, 
loved  Montpelier,  and  the  last  words  which  he  uttered 
were  these  :  "  I  have  passed  the  portals  and  see  nothing 
terrifying." 

Such  was  Leonard  Henderson,  racy,  of  the  soil  of  North 
Carolina,  bluff,  honest,  despising  shams,  thinking  what  he 
had  a  mind  to  and  saying  what  he  thought,  worthy  of  his 
great  name,  a  beacon  light  to  guide  you.  Sirs  and  me,  and 
and  all  generations  to  come,  and  an  admonition  to  little 
men  that  hypocrisy  and  self-seeking  and  sycophancy  and 
concealing  one's  honest  opinions,  are  lies,  hurtful  not  alone 
to  the  State  but  more  hurtful  to  the  man  himself.  With 
Mansfield  he  could  say,  "  I  wish  popularity,  but  it  is  that 
popularity  which  follows,  not  that  which  is  run  after.  It 
is  that  popularity  which  sooner  or  later  never  fails  to  do 
justice  to  the  pursuit  of  noble  ends  by  noble  means." 


22 


Address  of  Acceptance   by  Chief  Justice 

Clark. 


Time  tries  all  things.  Well  has  the  memory  and  fame 
of  Chief  Justice  Henderson  stood  this  stern  test.  More 
than  three-fourths  of  a  century  have  now  gone  since  he 
passed  from  his  seat  on  this  bench,  but  his  place  in  the 
opinion  of  the  bar  and  people  of  North  Carolina  has  in 
no  wise  abated  from  that  given  him  when  his  loss  was  still 
fresh  and  when  the  spell  of  his  personal  magnetism  and 
personal  friendships  still  lingered.  A  beautiful  county  and 
two  towns  bear  his  name — an  honor  North  Carolina  has 
conferred  on  no  other  member  of  this  bench  save  the  loved 
and  lamented  Gaston. 

Alone  among  the  nations  of  the  world,  and  alone  in  all 
the  tide  of  time,  England  and  the  peoples  that  speak  her 
tongue  have  adopted  the  system  of  precedents  by  which  the 
opinions  of  a  Judge  or  of  a  Court  are  considered  ever  after  as 
authority  (unless  overruled)  in  other  courts,  upon  the  same 
or  a  more  or  less  similar  state  of  facts.  In  all  other  countries 
and  in  all  other  times,  the  law  of  a  case  has  been  governed 
by  statute  and  when  that  was  lacking  the  opinion  of  the 
court  which  tries  a  case  has  been  considered  as  sound,  and 
as  likely  to  be  right,  as  that  of  a  former  Court  in  a  litigation 
between  other  parties.  Priority  of  time  is  not  considered 
as  superiority  of  wisdom.  Whatever  the  merits  of  the  two 
systems,  ours  gives  signs  of  breaking  down.  The  immense 
increase  in  the  number  of  volumes  of  reported  cases  has 
long  ago  placed  a  complete  collection  of  the  whole  body  of 

23 


the  laws  beyond  the  purse  and  beyond  the  time  and  capac- 
ity of  research  of  the  practitioner  and  taxes  the  means  of 
state  and  city  libraries.  Encyclopedias  and  other  compi- 
lations are  unsatisfactory  palliatives  constantly  requiring 
additions  and  further  condensations.  Amid  such  an  enor- 
mous and  growing  tide  of  judicial  utterances,  from  courts 
and  judges  of  every  degree  of  capacity  and  learning,  there 
is  already  a  hopeless  conflict  of  decisions  and  with  a  little 
diligence  an  array  of  precedents  can  be  culled  to  sustain 
either  side  of  almost  every  proposition. 

It  would  be  a  palpable  absurdity  for  any  court  to  merely 
count  the  number  of  cases  on  either  side  and  award  the  re- 
sult to  counsel  whose  diligence  can  unearth  the  larger 
number  of  precedents,  without  reference  to  their  value, 
based  upon  their  reasoning  and  the  reputation  of  the  court 
or  judge  from  whose  pen  they  come.  In  this  situation 
the  courts  are  driven  more  and  more  to  rely  rather  upon 
the  opinion  of  the  great  leaders  among  the  judges  of  known 
ability  and  clearness  of  view.  In  North  Carolina,  the  bar 
and  bench  have  thus  always  turned  to  the  opinions  of  Chief 
Justice  Henderson,  with  entire  confidence,  that  when  he 
has  discussed  a  subject  there  is  little  that  can  be  added  and 
in  full  reliance  upon  the  accuracy  of  the  result  that  he  has 
reached.  Thus  time  and  the  process  of  events  have  added 
to  and  not  diminished  his  value  and  fame. 

The  descendants  of  Chief  Justice  Henderson — lineal  and 
collateral — have  themselves  rendered  notable  services  to 
the  State  and  have  added  to  the  ancestral  honors  descended 
upon  them.  The  Court  is  glad  to  receive  at  their  hands 
this  portrait  of  the  great  lawyer  and  the  great  judge.  The 
Marshal  will  hang  it  in  its  appropriate  place  upon  the  walls 
of  this  chamber  by  the  side  of  his  great  compeers.  The 
valuable,  instructive  and  interesting  address  of  Judge  Win- 
ston in  presenting  the  portrait  will  be  printed  in  the  next 
volume  of  our  reports. 

.24 


